Federal Communications CommissionDA 03-2196
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter ofPetition of Cingular Wireless L.L.C. for a Declaratory Ruling that Provisions of the Anne Arundel County Zoning Ordinance are Preempted as Impermissible Regulation of Radio Frequency Interference Reserved Exclusively to the Federal Communications Commission / )
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MEMORANDUM OPINION AND ORDER
Adopted: July 3, 2003Released: July 7, 2003
By the Chief, Wireless Telecommunications Bureau:
TABLE OF CONTENTS
Paragraph No.
I.INTRODUCTION 1
II.BACKGROUND 3
A.History of Interference with Anne Arundel County 3
Public Safety Communications
B.Provisions of Anne Arundel County, Maryland’s Zoning Ordinance 6
C.The Record in this Proceeding 9
III.DISCUSSION11
A.Exclusive Federal Regulation of RF Interference12
B.Preemption of the County’s Zoning Ordinance Provisions18
C.Remediation of Interference23
IV.ORDERING CLAUSES28
APPENDIX: List of Commenters
I. INTRODUCTION
1. In this order, we find that federal law preempts provisions of the Anne Arundel County, Maryland ("County") zoning ordinance involving radio frequency interference (“RFI”). The provisions require that, prior to receiving a County zoning certificate, owners and users of telecommunications facilities must show that their facilities will not degrade or interfere with the County's public safety communications systems.[1] The Ordinance provisions also permit the County to revoke a zoning certificate where degradation or interference is found. On April 23, 2002, Cingular Wireless LLC (“Cingular”) filed a Petition for Declaratory Ruling that these Ordinance provisions are preempted.[2] The County filed a Motion to Dismiss Cingular's Petition claiming the courts, and not the Commission, have exclusive jurisdiction over final zoning actions of local governments affecting the placement, construction and modification of personal wireless service facilities.[3]
2. For the reasons stated below, we find that the challenged provisions of the County’s Ordinance regulate RFI, not traditional zoning functions, and therefore are preempted by federal law. We therefore grant Cingular's Petition for Declaratory Ruling and deny the County's Motion to Dismiss. At the same time, we remain concerned about interference to the County’s public safety communications system and we expect that the parties will continue to work cooperatively to resolve these problems, consistent with our previous guidance.[4] We therefore require the County, Cingular and Nextel Communications, Inc. (“Nextel”) to report to the Commercial Wireless Division of the Wireless Telecommunications Bureau (Bureau) in 30 and 90 days after release of this Order to describe the progress of mitigation efforts in the County.
II. BACKGROUND
A.History of Interference with Anne Arundel County Public Safety Communications
3. In 1989, the County began operating a public safety communications system in the 800 MHz band, which is used by the police department, sheriff’s department, and fire department.[5] In 1997, the County began experiencing radio frequency interference to its public safety communications system from certain wireless telecommunications networks.[6] In late 1998, the County wrote to the Commission concerning these problems, and the County and the carriers subsequently met several times with Commission staff.[7] The meetings were helpful in establishing productive working relationships and addressing many of the County’s interference concerns. Nonetheless, due to the engineering challenges created by operating public safety and commercial systems on nearby frequencies, some interference issues inevitably remained.[8]
4. In 1999, the County determined that because its system was 10 years old and in order to help remedy some of the interference problems, it would need to acquire a new public safety communications system.[9] In March 2001, the County engaged a consultant for a needs analysis concerning the new system.[10] Testing by the consultant revealed 61 existing “dead spots” in areas near commercial radio station antennas, where the County experienced failures in its public safety communications.[11] According to the County, the dead spots put police officers, firefighters and paramedics in difficult and unsafe situations.[12] The consultant found the interference was primarily caused by Nextel and secondarily by Cingular and that the interference centered around Nextel and Cingular’s tower sites.[13] According to the consultant, significant carrier input was required for the configuration of the County’s new system because the causes of interference can vary considerably and cannot be remedied by a single solution.[14]
5. The County approached both Nextel and Cingular regarding the interference. Nextel was reportedly receptive to assisting the County with mitigating interference by providing transmission information, assisting in site testing, reconfiguring antennas, changing power levels, installing filters, and engineering other methods to decrease interference.[15] However, according to the County, Cingular initially declined to provide interference assessment information and participate in interference testing.[16] Concerned that the $15 million expended on its proposed new system might be wasted, the County determined that any future upgrade of its public safety system was dependent on development of a mechanism to mitigate interference concerns from future telecommunications facilities placements.[17]
B.The Challenged Provisions of Anne Arundel County, Maryland's Zoning Ordinance
6. On January 22, 2002, the County adopted amendments to its zoning Ordinance, which became effective on March 15, 2002, for new facilities and September 11, 2002, for existing facilities.[18] Theseamendments provide that prior to receiving a County zoning certificate, owners and users of commercial telecommunications facilities must show that their facilities will not degrade or interfere with the County’s public safety radio systems.[19] The Ordinance defines “telecommunications facilities” to include towers, antennas, microwave dishes, and in-building wireless communications systems.[20] The Ordinance requires an owner or user to obtain a zoning certificate prior to “using or altering” any telecommunications facility and defines the term “altering” to include “any change in configuration, transmit frequency, or power level.”[21] The Ordinance requires each applicant to obtain a certification from an independent consultant acceptable to the County, before constructing, operating or altering any facility, that the facility or the applicant’s use of the facility will not degrade or interfere with the County’s public safety communications system.[22] In addition, each owner and user must submit, on an annual basis, a certification from an engineer acceptable to the County that the radio frequency emissions from each facility meet the applicable Commission standards and guidelines.[23] The Ordinance provides that where a facility or use of a facility degrades or interferes with the County’s public safety communications system, or if the requisite certifications are not made, the zoning certificate may be revoked.[24]
7. Since the time the Ordinance provisions were enacted, the County and commercial licensees have engaged in discussions concerning possible future revisions of the Ordinance.[25] As an outgrowth of these discussions, the County made revisions to certain provisions of the Ordinance other than those addressing RFI.[26] The record also indicates that the County has instituted a number of new measures to reduce interference and ease the regulatory burden on commercial carriers, including: 1) eliminating in practice the requirement of independent engineer certifications, thereby allowing carrier staff engineers to supply all required certifications; 2) completing a spectrum swap agreement with Nextel, which would relocate its public safety spectrum to the far ends of the bands utilized by commercial carriers; and 3) substantially upgrading its public safety system.[27] The Ordinance’s provisions relating to RFI, however, remain substantively unchanged.
8. Although the record is unclear regarding when it began to do so, it is undisputed that the County is enforcing the challenged provisions.[28] While a number of carriers operating in the County have filed some required certifications,[29] several carriers are not doing so.[30] Stating the impossibility of compliance with the Ordinance, Nextel and Cingular, neither of which has ever furnished certifications, assert that the County’s implementation of its Ordinance is actively obstructing their communications service operations.[31] Specifically, they claim that the County is refusing to issue permits for new tower sites, as well as use permits for existing sites, because their applications do not contain the non-interference certification.[32] Cingular has also advised that it has received correspondence stating that the County will impose fines and penalties for Cingular’s failure to obtain a use permit with the required certification for an existing facility for which no application was ever filed.[33]
C.The Record in this Proceeding
9. Cingular’s Petition was placed on public notice on May 7, 2002. The Commission received thirteen comments and four reply comments, the majority of which supported Cingular’s Petition.[34] After the comment period closed, four local governments, the City of Cumberland, Maryland, Village of Schaumburg, Illinois, City of Irvine, California, and County of Harford, Maryland, submitted ex parte filings generally supporting the County’s position.[35] In addition, the Local and State Government Advisory Committee (“LSGAC”) filed a recommendation that the Commission should refrain from preempting the Ordinance at least until after the Commission resolves the pending rulemaking proceeding regarding RF interference with 800 MHz public safety services.[36]
10. On May 24, 2002, the County filed a Motion to Dismiss Cingular’s Petition, arguing that the courts, and not the Commission, have exclusive jurisdiction over final zoning actions of local governments. Cingular filed an Opposition to the Motion to Dismiss maintaining that the County’s provisions regulate RFI and therefore this matter falls within the exclusive jurisdiction of the Commission.[37]
III. DISCUSSION
11. As described below, we find that the challenged provisions of the County’s zoning Ordinance infringe on the Commission’s exclusive jurisdiction over RFI and are preempted under the doctrine of field preemption. We therefore grant Cingular’s Petition for Declaratory Ruling. In addition, we find that because theseprovisions attempt to regulate RFI, rather than traditional zoning functions, the exclusive jurisdiction of the courts under section 332 of the Act is not triggered. Accordingly, we deny the County’s Motion to Dismiss. We recognize, however, that resolution of the issue of preemption will not in itself resolve the interference problems the County has experienced in its public safety communications system. We expect carriers to render full cooperation with a local government’s efforts to mitigate interference to its public safety communications system. Accordingly, we require the County, Cingular, and Nextel to report to the Bureau’s Commercial Wireless Division on the status of mitigation efforts in the County in 30 and 90 days after release of this order.
A.Exclusive Federal Regulation of RF Interference
12. The Supremacy Clause of Article VI of the Constitution provides Congress with the power to preempt state law.[38] The Supreme Court has found that Congress' preemption power extends to both state and local ordinances.[39] There are various forms of federal preemption.[40] Express preemption occurs when the language of the federal statute reveals an express congressional intent to preempt state law.[41] The courts have not found local regulation of RFI expressly preempted.[42] Field preemption occurs when Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law,[43] or if an Act of Congress touches a field in which the federal interest is so dominant that the federal system is presumed to prohibit enforcement of State laws on the same issue.[44] The courts have identified field preemption as the “most pertinent” of the various forms of federal preemption to the issue of local regulation of RFI.[45] Under field preemption, Congressional legislation and an agency’s regulations and decisions determine whether and to what extent federal law preempts state or local regulation.[46] Preemption may result not only from action taken by Congress; a federal agency acting within the scope of its Congressionally delegated authority may also preempt State regulation.[47] It is well settled that federal regulations have the same preemptive force as federal statutes.[48]
13. The Commission and the federal courts have consistently found that the Commission’s authority in the area of RFI is exclusive and any attempt by State or local governments to regulate in the area of RFI is preempted.[49] The Commission addressed this issue almost 20 years ago in 960 Radio.[50] In that proceeding, a local zoning board issued a conditional use permit to an FM radio facility subject to a restriction that the applicant “not operate the new facility so as to produce electronic interference to existing facilities” or to TV translators.[51] In a petition for declaratory ruling, the owner of the FM facility sought to void the requirement on the ground that “jurisdiction to control interference over the airwaves rests exclusively with the [Commission].”[52] The Commission found that sections 2, 301, and 303(c)-(f) of the Communications Act,[53]taken together, “comprehensively regulate interference, [and therefore] Congress undoubtedly intended federal regulation to completely occupy that field to the exclusion of local and state governments.”[54] The Commission noted that Supreme Court[55] and Commission[56] precedent supported this conclusion. The Commission further found that “any doubt about [the Commission’s] jurisdiction to regulate interference was removed” with Congress’ statement in the House Conference Report to the 1982 provisions of section 302 of the Act, which provides:
The Conference Substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over matters involving RFI. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The Conferees believe that radio transmitter operators should not be subject to fines, forfeitures or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems. Rather, the Conferees intend that regulation of RFI phenomena shall be imposed only by the Commission.[57]
For these reasons, the Commission found the local zoning board’s interference restriction on a radio station in a conditional use permit was preempted under federal law.
14. In Mobilecomm, the former Common Carrier Bureau applied the Commission’s rationale in 960 Radio to invalidate provisions of a local zoning ordinance that required a paging facility operator to notify the town's planning and zoning commission when it changed the power and/or frequency of its transmission and required that "[n]o operation shall be permitted which produces any perceptible electromagnetic interference with normal radio or television reception in any area within or without the town."[58] The Bureau recognized that although Mobilecomm involved operations in a different service, i.e., public land mobile service (PLMS), it was still governed by the decision in 960 Radio, which involved FM radio broadcasting.[59] The Bureau reasoned that the sections of the Communications Act and the legislative history that the Commission relied on in 960 Radio governed the interference at issue in Mobilecomm, “since Title III of the Communications Act, including sections 301, and 303(c), (d), (e) and (f) applies to PLMS stations such as that operated by Mobilecomm.”[60] In preempting the ordinance, the Bureau stated that the law establishing the Commission’s exclusive jurisdiction over RFI “is clear” and that the local government “must look to the Commission for interference regulation.”[61]
15. Recent federal court decisions are consistent with the Commission’s conclusions in 960 Radio and Mobilecomm.[62] In Johnson County, for example, the Tenth Circuit considered a local zoning provision that was very similar to the Ordinance provisions at issue here. In that case, the local zoning authority adopted an “interference regulation” that prohibited wireless telecommunications towers and antennas from operating in a manner that interfered with public safety communications.[63] The regulation also authorized the county’s zoning authority to determine when interference existed and, after proper notice and opportunity for a hearing, to force the offending facility to cease operations.[64] Citing the Communications Act,[65] Commission regulations,[66] Commission decisions,[67] and an informal opinion rendered by the Chief of the Commercial Wireless Division in the same matter,[68] the Court determined that “Congress intended federal regulation of RFI issues to be so pervasive as to occupy the field.”[69] The Court noted that “this analysis is consistent with decisions of virtually all courts considering RFI preemption.”[70] For these reasons, the Court concluded that the local regulation was void under the doctrine of field preemption.[71]
16. Similarly, in Freeman, the Second Circuit considered whether federal law preempted a zoning permit condition that required the users of a communications tower to remedy any interference with reception in homes in the area.[72] The city zoning administrator had issued notices of violation to a radio station operator, cellular phone company, and city fire and ambulance service, all of which used the communications tower, on the grounds that their operations had caused interference with electronic devices in violation of the zoning permit conditions. The city’s zoning board, however, dismissed the notice of violation on the grounds of federal preemption. On appeal, the Second Circuit determined that, based on an analysis of the statute,[73] legislative history,[74] Commission regulations[75] and Commission decisions,[76] the field of radio frequency interference was occupied by federal law and affirmed the zoning authority’s decision that it was preempted from enforcing the zoning permit condition.[77] The Court reasoned that “allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy RF interference stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[78]
17. Taken together, these Commission and court decisions clearly establish that the Commission has sole jurisdiction to regulate RFI, to the exclusion of provisions in local zoning or other regulations.
B.Preemption of the County’s Zoning Ordinance Provisions.
18. Based on Commission precedent in 960 Radio and Mobilecomm, and the federal court decisions in Johnson County and Freeman, we find that the County’s provisions constitute an attempt to regulate RFI and therefore are preempted under the doctrine of field preemption.A review of the provisions shows that their intent and effect are to regulate the operations – not the placement, construction and modification – of licensed facilities.[79] As in Mobilecomm, the County’s zoning Ordinance requires all wireless carriers to obtain prior certification from the County before constructing, operating or altering their facilities.[80] The Ordinance also gives the County, similar to the ordinance struck down in Johnson County, unfettered discretion to determine whether interference exists and when interference is considered resolved, without any apparent objective standard for the determination.[81] Again similar to the Johnson County ordinance, where interference is found, the Ordinance permits the County to revoke the zoning permit to force the carrier to cease operations at the offending facility, even where the facility otherwise complies with all appropriate land use regulations.[82] The Ordinance’s requirements concerning radio frequency engineering studies further demonstrate its focus on radio frequency regulation rather than local land use concerns.[83] Moreover, under the Ordinance, "facilities" are broadly defined to include not only structures that are traditionally regulated by zoning ordinances, such as towers, antennas and microwave dishes, but also facilities that would not normally be subject to zoning ordinances such as in-building wireless communications systems.[84]